Disability Insurance

Rescinded 1984

Where medical records concerning drug abuse are received by the Social
Security Administration from any source for use in the administration of
the Social Security Act, held, (1) such records are not subject to
the disclosure provisions of section 408 of Drug Abuse Office and
Treatment Act of 1972 (P.L. 82-255) unless such records are maintained in
connection with the performance of a drug abuse prevention function
authorized or assisted under any provision of the Drug Abuse Act or any
act amended by it; (2) in those situations where disclosure of such
records is subject to both Regulation No. 1 and section 408, the provision
with the greater restrictiveness with respect to whether and how the
information may be disclosed is controlling.

A question has been raised as to a possible conflict in the application of
section 408 of the Drug Abuse Office and Treatment Act of 1972 (Public Law
92-255), and Regulation No. 1 (20 CFR 401.1 et seq.) of the Social
Security Administration, with respect to patient records maintained in
connection with the performance of a drug abuse prevention function
authorized or assisted under P.L. 92-255 or any act amended by it.

Section 408, supra, is applicable to records "which are maintained
in connection with the performance of any drug abuse prevention function
authorized or assisted under any provision of [P.L. 92-255]." Any record
or any entry on any record which is maintained under these circumstances
and which deals with "identity, diagnosis, prognosis or treatment" of any
patient, is subject to the limitations on disclosure. These limitations
are to be strictly construed, as the Joint Explanatory Statement of the
Committee of Conference on P.L. 92-255 made clear. House Rept. No. 92-920,
March 15, 1972, p. 33.

Accordingly, should the Social Security Administration receive such a
record for use in connection with a social security purposes, it is
legally obligated to maintain the confidentiality of that record. On the
other hand, if, in connection with the social security program, the
Administration receives evidence or records, such as from a treating
physician, indicating drug abuse by the individual to whom the record
relates, such record would not be subject to the prohibitions on
disclosure in section 408, supra, unless the records were generated
by, or are maintained in connection with, the performance of a function
authorized or assisted under the Drug Abuse Act or any act thereby
amended. Likewise, medical information concerning treatment for drug abuse
furnished to the Administration by institutions, agencies, or physicians
for the adjudication of claims would not be subject to the limitations on
disclosure in section 408 as long as such institutions, agencies, or
physicians did not generate, or were not maintaining, the information for
purposes of P.L. 92-255.

In those instances where both Regulations No. 1 and section 408 apply, the
provision with the greater restrictiveness with respect to whether and how
the information may be disclosed, is controlling. This is consonant with
the purpose as well as the language of both section 408 of P.L. 92-255 and
section 1106 of the Social Security Act since the clear policy of
both statutes is to restrict disclosure.

To illustrate, under section 408(b)(1) of P.L. 92-255, if the patient has
given his written consent, the content of his record "may" be disclosed to
medical personnel for treatment and to governmental personnel for the
purpose of receiving benefits. Such disclosure, it should be noted, is
permitted, not mandated. Therefore, in those instances where Regulation
No. 1 is more "restrictive" than section 408, e.g., where consent of the
medical source would be required, in addition to consent of the patient,
and the consent of the medical source has not been obtained, disclosure of
the information is prohibited, on authority of Regulation No. 1.

Again, under section 408(b)(2)(C) records may be released to a court of
competent jurisdiction without the patient's consent if authorized by an
appropriate order after an application showing good cause therefor. But
where the consent of both patient and source is required by Regulation No.
1 before such records may be released by the Administration, such consents
must be obtained prior to disclosure. In such situations, section 408
would permit such disclosure without consent but Regulation No. 1
mandates such consent before disclosure. Since Regulation No. 1 is
more "restrictive," its provisions would control.

On the other hand, where section 408 is the more restrictive, the
restrictions on disclosure in that section control with respect to all
records generated or maintained in connection with the performance of a
function authorized or assisted by P.L. 92-255. Where medical information
is furnished for the adjudication of claims or other social security
purposes by participating institutions or agencies under the Drug Abuse
Act, the patient's consent would be required before his record can be
released by the Administration.

Section 4013(g)(2) of Regulations No. 1 permits, inter ali, the
disclosure of medical (including drug abuse) information to a State agency
for vocational rehabilitation purposes under some circumstances. Whether
such records disclosable under this section would be disclosable at
all under section 408, would depend on whether a vocational
rehabilitation program provides "benefits" within the meaning of that term
in section 408(b)(1)(B). Even a determination that a regimen, i.e.,
services prescribed for a patient under a vocational rehabilitation
program, constitutes a "benefit" for purposes of section 408, would
require that patient's consent before the Administration could disclosure
the record.

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